A rehearing was granted in this cause because of what was said in the opinion (236 Mich. 173) relative to gross negligence and to wilful or reckless misconduct on the part of the brakeman. It should be noted that the brakeman testified that before he gave the signal to deceased to cross the tracks he did look east and down the main line in the direction from which the passenger train came, and that he saw some smoke "away down there" "which might have been" the passenger train.
Plaintiff's principal witness, Volkner, also gave some testimony to the effect that before the brakeman gave the signal to cross he was in a position where he might have seen a train approaching on the said main line. There is also evidence that the brakeman did not so look east on the main line. If the brakeman signaled the deceased to cross the tracks without ascertaining whether the passenger train was approaching, he was negligent. If he looked, as he says, the evidence shows that he must have looked carelessly and negligently and failed to see the oncoming train. The brakeman testified that when he discovered the passenger train was approaching the crossing he warned deceased to stop. Plaintiff's testimony is contradictory of that, and indicates that the brakeman had neither time nor opportunity so to do. *Page 400
Plaintiff made out a strong case of actionable negligence against defendant, and it will not be heard to complain that the question of deceased's contributory negligence was submitted to the jury.
The theory of gross negligence ought to have been omitted from the charge. There is no evidence of actionable subsequent negligence against the defendant. Clearly, the engineer of the passenger train could not have stopped such train after discovering deceased's peril, could not have done more than he did do. The brakeman's negligent act in signaling deceased to cross was antecedent to, if not concurrent with, in point of time, any negligence which might be urged against the deceased as contributory. There is no room on the record to claim antecedent negligence of plaintiff and subsequent negligence of defendant, and hence no gross negligence. Cooley on Torts (2d Ed.), p. 674, cited in Gibbard v. Cursan, 225 Mich. 311.
Nor can it be said that defendant could be charged with wilful, wanton, or reckless misconduct. If it so offended, it was by its brakeman. To so hold, would mean that the brakeman signaled the deceased to cross when it must have been apparent to him, having an ordinary mind, that the result was likely to prove disastrous to the deceased. 69 L.R.A. 516; 20 R. C. L. p. 145. The record will not support such a holding. The brakeman was guilty of ordinary negligence, nothing more. But, in view of the character and certainty of the evidence of negligence, we think it should be held that the error of the charge was without prejudice, and that, therefore, Mr. Justice BIRD is right in concluding that the judgment should be affirmed.
FELLOWS and WIEST, JJ., concurred with CLARK, J. *Page 401